Content-Type: text/html 96-111w.v7.html

CADDNAR


[CITE: Great Lakes Inland Marina and Marina Entertainment Complex, Inc. v. DNR and Hammond Port Authority, 7 CADDNAR 141 (1996)]

[VOLUME 7, PAGE 141]

Cause #: 96-111W
Caption: Great Lakes Inland Marina and Marina Entertainment Complex, Inc. v. DNR and Hammond Port Authority
Judge: Lucas
Attorneys: Senica; Nardi; Steger, Miner, Smith
Date: December 5, 1996

ORDER

Summary judgment is granted in favor of the Department of Natural Resources and against Marina Entertainment Complex, Inc. The request for administrative review of Permit LM-98 filed by Marina Entertainment Complex, Inc. is dismissed with prejudice.

FINDINGS OF FACT

1. On August 1, 1994, the Indiana Department of Natural Resources (the "Department") received a "Permit Application for Construction in or on a Public Freshwater Lake or Lake Michigan" from the Hammond Port Authority.

2. On July 21, 1995, the Department issued Permit LM-98 to the Hammond Port Authority. The project authorized by the Permit was the dredging of approximately 7,200 cubic yards of material from the bed of Lake Michigan; relocation of an existing fuel pier and pier sections to accommodate a gaming boat facility; construction of a two-level dock by driving steel piling for foundation to facilitate a passenger boarding facility; the dredging of approximately 15,200 cubic yards of material to accommodate a scuba-diving training basin; the placement of additional riprap on an existing 1,000-foot revetment seawall surrounding the Hammond Filtration Plant; and, the placement of additional pea gravel around the hull of the Milwaukee Clipper for toe protection.

3. On June 3, 1996, Marina Entertainment Complex, Inc. ("Marina Entertainment") wrote to the Division of Hearings of the Natural Resources Commission and asserted that Marina Entertainment had "a lease and option to purchase the property which is adjacent to the Hammond Marina if not for the separation caused by a right-of-way, easement or railroad." Marina Entertainment also claimed in the letter that it had "never been notified by the Hammond Port Authority for [of] a permit application and we were never given an opportunity to give our views."

4. The June 3, 1996 letter from Marina Entertainment was processed by the Division of Hearings as a request for administrative review under IC 4-21.5 (sometimes called the "Administrative Orders and Procedures Act" or "AOPA") and 312 IAC 3. Subsequently, it was scheduled for a prehearing conference simultaneously with another request for administrative review brought by Great Lakes Inland Marina for Permit LM-98.

5. By agreement of the parties, the reviews initiated by Marina Entertainment and by Great Lakes Inland Marina were consolidated into the instant proceeding. At the time of consolidation, the Department noted for the record that it might have a distinct "lack of standing" defense with respect to Marina Entertainment. "Report of Prehearing Conference," June 11, 1996.

6. On July 1, 1996, the Department filed "Respondent DNR's Motion for Summary Judgment" against Marina Entertainment. In the motion, the Department claimed that Marina Entertainment lacked the requisite standing to entertain administrative review under AOPA.

7. Summary judgment is appropriate only where no issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co. (1990), Ind. App., 560 N.E.2d 459, trans. den; and Morrison Estate v. Department and Black Beauty Coal, 7 Caddnar 57 (1994). Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n. (1983), Ind. App., 447 N.E.2d 1187, trans. den. 457 N.E.2d 542.

8. Two state statutes which establish permitting requirements are pertinent to Permit LM-98: (1) IC 13-2-4 [recodified as IC 14-29-1]; and, (2) IC 14-3-1-14.5 [recodified as IC 14-29-3]. See also 310 IAC 21-1.

9. The general notice provision which has potential application to Permit LM-98, as claimed by Marina Entertainment, is found at IC 4-21.5-3-5(b)(2). When an agency issues an order, including a permit under IC 13-2-4 or IC 14-3-1-14.5, notice must be given to each

[VOLUME 7, PAGE 142]

"person to whom a law requires notice to be given."

10. The Indiana General Assembly has enacted a chapter to help define who is entitled to notice for permits issued under several statutes administered by the Department. IC 14-3-18 [recodified at IC 14-11-4]. Included among these is IC 14-3-1-14.5 but not IC 13-2-4.

11. Since both IC 13-2-4 and IC 14-3-1-14.5 apply to Permit LM-98, the Hammond Port Authority must comply with IC 14-3-18 to meet the notice requirements of Permit LM-98.

12. As provided in IC 14-3-18-8(a):

(a) If a license application affects real property, notice of the application is required as
follows:
(1) The applicant must notify at least one (1) of the owners of each parcel of real property reasonably known to be adjacent to the affected real property.

13. An "owner" is defined in IC 14-3-18-5 as a person: listed on the tax assessment rolls as being responsible for the payment of real property taxes imposed on the property and. . .in whose name title to real property is shown in the records of the recorded of the county in which the real property is located.

14. No material fact is in dispute as to whether Marina Entertainment is the "owner" of real property adjacent to the real property affected by Permit LM-98. It is not.

15. Marina Entertainment has made no showing that it is listed on the tax assessment rolls as being responsible for the payment of real property taxes. Neither is it shown to be the title owner. Rather, the information most favorable to Marina Entertainment suggests it is a lessee with an option to purchase.

16. Both IC 4-21.5-3-5 and IC 14-3-18-8(a) also recognize that persons may obtain notice of an agency permit without being a "person to whom a law requires notice to be given." As provided in IC 4-21.5-3-5(b)(4), a person is entitled to notification if the person provides a written request for notification, if the request describes the subject of the order with reasonable particularity and is delivered to the agency at least seven days before the day notice is given. Similarly, IC 14-3-18(a)(2) provides the Department "shall notify those persons who have requested notification of a license application that:

(A) affects the specific real property to which the application relates; or
(B) is of the same type as the application."

17. Marina Entertainment makes no allegation that it requested the Department that it be notified of the issuance of Permit LM-98, that it be notified of a permit relative to activities of the Hammond Port Authority, that it be notified of a permit for activities on this portion of Lake Michigan, or that it be otherwise similarly notified.

18. Neither the Department nor the Hammond Port Authority had a duty under IC 4-21.5-3-5 or under IC 14-3-18 to provide notice to Marina Entertainment of the issuance of Permit LM-98.

19. Review of a permitting action subject to IC 4-21.5-3-5 must generally be taken within 15 days after issuance of the action, with an additional three days added for review if notice is provided by mail pursuant to IC 4-21.5-3-2. Failure to file in a timely fashion subjects a petition to involuntary dismissal by summary judgment. South Central Community Mental Health Centers, Inc. v. DNR and Jones, 7 Caddnar 114 (1996).

20. Failure to provide notice to a person entitled to notification could invalidate the permitting action where the "unnotified person is substantially prejudiced by the lack of notice. The burden of persuasion as to substantial prejudice is on the unnotified person." IC 4-21.5-3-5(f). However, Marina Entertainment was not entitled to notification.

21. Permit LM-98 was issued on July 21, 1995. The request for review was not filed by Marina Entertainment until nearly one year later on June 3, 1996. The request for review by Marina Entertainment was not timely and must properly be dismissed.